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Keith A. Brown v. Elaine Savage

September 30, 2011


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge


Pending before the Court in the above-entitled matter are cross motions for summary judgment, a motion for leave to file a late response and related motion to grant summary judgment based on a failure to respond, and a motion to strike pleadings. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.


Plaintiff Keith Brown ("Brown") filed his civil rights Complaint in September of 2008. Dkt. 1. The Court conducted an initial review of the Complaint and determined Brown could proceed with his false arrest and false imprisonment claims against Bonner County's Sheriff's Detective Tony Ingram ("Ingram") and Federal Bureau of Investigations ("FBI") Special Agent Kevin Dunton ("Dunton"). Dkt. 5. All other claims were dismissed by the Court. Id. The claims against Ingram are pursuant to 42 U.S.C. § 1983 and the claims against Dunton are pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) which is analogous to § 1983 claims for federal actors.

The facts are generally undisputed. On or about February 5, 2007, Bonner County Sheriff's office responded to notification of an abandoned vehicle. The abandoned vehicle was determined to belong to Mr. Leslie Breaw ("Breaw"). The investigating officers were concerned about the status of Breaw as it was winter and the temperatures were cold and there were numerous valuable items in the abandoned vehicle as well as empty beer cans and the keys to the vehicle were clipped to the truck.

Ingram was the detective working with other sheriff's office deputies to try to figure out what had happened to Breaw. They went to the address on file with the U.S. Post Office for Breaw and entered the two residences located at the address in order to conduct a welfare check on Breaw. No one answered at the first house and when officers entered the residence they determined based on mail and other items located in the house that the residence was not Breaw's but the residence of Keith and Tyrah's Brown and Rebekah Harding (Tyrah Brown's mother). So the officers left the residence and went next to the house next door. No one answered. The officers entered and determined it was Breaw's residence, but it did not appear that anyone had been home for a period of time. The officers talked with neighbors who informed them they had not seen Breaw for at least a week or more and one neighbor said they had noticed the Browns packing their vehicle in a hurried manner and had not seen the Browns since then.

Detective Ingram talked to Phyllis Scott, Breaw's mother, and she agreed her son was missing as he had told her he would get back to her after their phone call about Breaw coming to visit. The phone call occurred on or about January 14-15, 2007 and she had not heard from him since then.

Ingram also got subpoenas from the court for the financial records from Breaw's banks. First State Bank indicated he had a balance of $1,100 and that there had been no activity since January 15, 2007. Ingram had noticed a missing check (and carbon duplicate) in the checkbook found in the truck, but that check number had not cleared the bank.

Panhandle State Bank confirmed the last account activity was on January 25, 2007 and there had been several uses of the debit card associated with the account. Ingram investigated the debit charges from Mac's Gas and Grocery in the Coolin area on January 18, 2007. The surveillance video from the store revealed it was Keith Brown ("Brown") who had used the debit card on January 18, 2007 for gas and other items. Ingram made the determination it was Keith Brown based on a booking photo of Brown from a prior arrest which he compared to the video.

The debit applied by the bank on January 25th was for The Tamarack store in Priest Lake for $92.37 and was for diesel fuel at 1246 p.m. A receipt was found that tied to this amount in the personal items of Breaw. The store owners confirmed they had not recently seen Breaw.

Ingram was also aware that Breaw's dogs were found unfed and running loose. The investigation revealed that a clerk at Coolin Corners bar-restaurant knew Breaw, as well as Keith and Tyrah Brown and they had been in for burgers and beer a couple of weeks ago. The clerk indicated Breaw was a regular but had not seen him since the last visit a couple of weeks ago.

Late on February 6, 2007, the prosecutor decided Ingram had enough evidence to establish probable cause to request an arrest warrant for Brown's use of Breaw's debit card and for a search warrant of Breaw's and the Browns' residences. Ingram testified for the warrants before state court Magistrate Judge Barbara Buchanan. Judge Buchanan was familiar with Keith Brown and found there was probable cause to issue an arrest warrant and to issue the search warrants on the two residences.

After the arrest warrant and search warrants were issued, the investigation continued. Ingram discovered that Brown had a friendship with Breaw and that Rebekah Harding was Tyrah Brown's mother and had been living with the Browns. One person recalled Breaw and Brown having a disagreement. There was a report that Keith and Tyrah Brown had personally collected rent from Breaw's renters and this appeared to be without Breaw's consent when a renter told officers Breaw called one renter asking why they had not paid their rent and they told him they had paid the rent to Keith and Tyrah Brown.

A moving truck showed up to move the contents of the Brown's house. Tyrah Brown had not come back to work to get her paycheck. Ingram had a phone conversation with Rebekah Harding who was in Montana and she indicated statements were made by the Browns indicating they thought Breaw had a lot of money (his mother had confirmed Breaw had received a large inheritance) and that they felt like they would not get a fair shake from the system and they decided to run. Rebekah Harding would not disclose where the Browns were located. It was also discovered that an escrow account of Breaw's had more than $50,000 removed by the Browns. Other restaurant owners indicated Breaw was a regular but had not been seen since January.

On February 21, 2007, Agent Dunton requested a federal Unlawful Flee to Avoid Prosecution ("UFAP") warrant from United States Magistrate Judge Mikel H. Williams based on Dunton's belief from information provided by the Bonner County Sheriff's office that Brown had fled the state to avoid prosecution on the alleged unlawful use of Breaw's debit card. A UFAP warrant was granted on that same day.*fn1

Sometime on March 19, 2007, a body was found in the woods. At around noon on March 20, 2007, Brown was arrested in Florida on the federal UFAP warrant and was transferred to Idaho. The discovery of Brown in Florida was based on independent information from a Montana car dealer being asked by Tyrah Brown to mail something to her at a Florida address. It is unclear from the record when Brown was returned on the warrant to Idaho.

The charges for grand theft in criminal case number 2007-0621involving the debit card were dismissed on May 2, 2007. On or about May 3, 2007, Brown was charged in state criminal case no. CRF-2007-2454 with the murder in the first degree of Breaw, grand theft by possession of stolen property involving $56,000 in an escrow account, and being a felon in possession of a firearm. Brown's counsel in state court filed a motion to suppress evidence arguing there was no probable cause for the arrest warrant on February 6, 2007. The state district court ruled probable cause existed for the warrant for arrest and, in the alternative, Brown could have been arrested without a warrant.

Brown pled guilty to voluntary manslaughter and aiding and abetting grand theft. An Amended Judgment was filed On November 15, 2010 in state court indicating Brown was sentenced to 15 years (10 years fixed) on the manslaughter count and 5 years fixed on the grand theft charge, to run concurrent. The Court finds the criminal case is on appeal according to the Idaho Supreme Court Data Repository*fn2 ("Repository") and the Court takes judicial notice of the certain facts from the Repository. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2010) (explaining that court may take judicial notice of matters of public record).

It is unclear from the record when the body in the woods located on March 19, 2007 was identified as Breaw's, but Plaintiff claims Breaw's debit card (that Ingram thought had been unlawfully used by Brown to justify the arrest warrant for grand theft) was found on the body of Breaw. Brown claims Ingram and Dunton had a duty to go back to the magistrate judges who issued the warrants and inform them that probable cause regarding the grand theft charges related to alleged unlawful use of the debit card no longer existed when: 1) the debit card was found on Breaw; 2) additional information proved Brown had used the debit card of Breaw's with permission on other occasions; and 3) Breaw used his debit card after the surveillance film of Brown buying gas and other items at Mac's so the assumption by officers should have been Brown had permission to use the debit card earlier in January at Macs Gas and Grocery. Brown also argues Ingram and Dunton had a duty to conduct further investigations before seeking warrants and that once exculpatory evidence was discovered regarding the grand theft charge, Ingram and Dunton should have requested the warrants be vacated by the issuing judges. Brown claims Ingram and Dunton violated his constitutional rights to be free from an unlawful arrest and false imprisonment based on the alleged unlawful arrest. Defendants deny they violated Plaintiff's constitutional rights.

Motion to Strike Pleadings

Brown seeks to have the Court strike the pleadings filed by Seann Mumford claiming he is not an attorney of record for Bonner County. Mr. Mumford is associated with Mr. Erbland and both attorneys are attorneys of record in this matter. Furthermore, another attorney in the firm in which Mr. Erbland practices is allowed to sign pleadings on behalf of Mr. Erbland. Accordingly, the motion to strike is denied.

Motion to Grant Summary Judgment Against Defendant Ingram for Failure to Respond and Defendant Ingram's Motion for Leave to File a Memorandum Opposing Plaintiff's Motion for Summary Judgment

Plaintiff seeks the Court to grant his motion for summary judgment since Defendant Ingram did not timely file his response to Plaintiff's motions. Defendant Ingram also seeks leave of the Court to file his response to Plaintiff's motion for summary judgment less than twenty-four hours after the deadline. The Court denies Plaintiff's motion as a court cannot grant a motion for summary judgment merely because the opposing party failed to respond to the motion. See Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) (summary judgment may not be granted simply because opposing party violated a local rule, if movant did not meet the burden of demonstrating absence of genuine issue for trial). Accordingly, the Court will evaluate the motion for summary judgment on the merits and deny the Plaintiff's request to summarily grant his motion summary judgment due to an untimely response by Defendant Ingram.

District Courts may establish local rules of procedure that have the force of law. Fed. R. Civ. P. 83(a)(1). Attorneys practicing in a federal district court are charged with knowledge of the local rules the same as they are charged with knowledge of the Fed. R. Civ. P. Local Rule 7.1 controls when a response must be filed to a motion. Pursuant to D. Idaho L. Civ. R. 7.1(c), the responding party must file its response within twenty-one days after service upon the party of the motion and memorandum by the moving party.*fn3 The Local Rules provide that failure to respond to a motion may be deemed consent to the granting of the motion. D. Idaho L. Civ. R. 7.1(f). Moreover, pursuant to Fed. R. Civ. P. 6(d), three days are added to the response period of twenty-one days, so the response in this case (as confirmed by the deadline on the docket sheet for Plaintiff's motion for summary judgment, Dkt. 34) was due on January 13, 2011. The motion for leave to file a response was filed on January 14, 2011, so Defendant's request to file one day late is an accurate representation.

Further, Plaintiff has not shown he suffered any prejudice from the request by Defendant Ingram to file his response one day late. The Court notes Ingram had filed his own cross motion for summary judgment on January 12, 2011 (Dkt. 38) which was well before the motions deadline of May 31, 2011 per the scheduling order, Dkt. 32. So Ingram was not avoiding addressing the Plaintiff's allegations and the one day extension for the response is in the interests of justice in resolving the pending motions after hearing from all parties, not just one party. Therefore, the Court will grant Ingram's motion for leave ...

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